CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 22012/93                       by C. B.                       against Germany         The European Commission of Human Rights (First Chamber) sitting in private on 11 January 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 12 April 1993 by C. B. against Germany and registered on 9 June 1993 under file No. 22012/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a German citizen born in 1954.   He lives in England and is represented before the Commission by Mr. J.P. Gardner, solicitor, and Mr. K. De Haan, barrister, both of London.         The facts of the application, as submitted by the applicant's representatives, may be summarised as follows.         In 1976 the applicant was convicted in Germany of attempted theft and sentenced to three years' imprisonment.   In December 1978 he was released on four years' probation.   In 1983 he was convicted of fraud and sentenced to two and a half years' imprisonment.   The sentence was confirmed on appeal.         In December 1989 the applicant moved from France, where an extradition request had been granted but not implemented, to England.         On 15 March 1990 the Dortmund District Court (Amtsgericht) issued an arrest warrant against the applicant in respect of robbery charges allegedly committed between April and July 1983.   On 6 April 1990 the applicant's extradition was requested in connection with these charges. An order to proceed was issued by the Secretary of State on 9 April 1990.   A further request for extradition was made in respect of the balance of the sentences imposed in 1976 and 1983.   An second order to proceed was issued on 6 July 1990.         Extradition was refused in respect of the order of 9 April 1990 but granted in respect of the order of 6 July 1990.   The applicant was surrendered to the German authorities on 13 November 1990 and released on 21 March 1991 by the Hagen Regional Court (Landgericht) on the ground that the time he had spent in prison in England awaiting extradition could be taken into account.   He returned to England.         On 6 June 1991 the Dortmund District Court issued a further arrest warrant again alleging the charges in the request for extradition of 6 April 1990 (ie the matters in the arrest warrant of 15 March 1990), and also alleging three other offences from the period 1980-81.   The Dortmund Regional Court rejected the applicant's challenge to the arrest warrant on 14 November 1991.   His appeal to the Hamm Court of Appeal (Oberlandesgericht) was rejected on 27 August 1992 and his constitutional appeal was rejected by a committee of three judges of the Federal Constitutional Court on 30 October 1992 (served on the applicant's representatives on 4 November 1992).   COMPLAINTS         The applicant alleges a violation of Article 5 of the Convention. He considers that the provision protects individuals not merely from unlawful incarceration, but also from harassment by the authorities.         He also alleges a violation of Article 6 para. 2 of the Convention in that, inter alia, "[i]t is not sufficient for the German courts the establish that there is some evidence (however shaky) in respect of the alleged offences in the arrest warrant.   They must take into account the object and purpose of Article 5 of the Convention in protecting the individual from the risk of arbitrariness. ...".         The applicant sees a violation of Article 8 of the Convention in that the consequences of the arrest warrant in that he is de facto prevented from visiting Germany, where there are members of his family who are unable to travel themselves, and that this interferes disproportionately with his private and family life.   He also regards the continued existence of the arrest warrant as a substantive prohibition on his right to enter and leave the country of which he is a national, namely Germany, in violation of Article 3 para. 2 of Protocol No. 4.   THE LAW   1.     The applicant alleges a violation of Article 5 (Art. 5) of the Convention by virtue of the continuing existence of an arrest warrant against him.         The Commission notes that the applicant has not in fact been detained pursuant to that arrest warrant.   Whilst the Commission has in the past accepted that Article 5 (Art. 5) may extend to circumstances involving threats of unlawful detention (cf., for example, No. 8334/78, D.R. 24, p. 103, at p. 107) it finds that no such circumstances pertain in the present case.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also alleges a violation of Article 6 para. 2 (Art. 6-2) of the Convention.         The Commission finds that the applicant's complaints in this respect are of the nature of procedural complaints concerning criminal proceedings which have not yet been completed.   They do not raise any issues under Article 6 para. 2 (Art. 6-2) of the Convention.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     Finally, the applicant complains that the effect of the outstanding arrest warrant is effectively to prevent him from entering and leaving Germany.   He sees a violation of Article 8 (Art. 8) of the Convention and of Article 3 para. 2 of Protocol No. 4 (P4-3-2) to the Convention.         The Commission finds that, to the extent that the mere existence of an arrest warrant is capable of amounting to an interference with the rights guaranteed by Article 8 (Art. 8) of the Convention, the interference is justified in the present case for the prevention of crime, within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.   In particular, although the warrant of 6 June 1991 relates, as the applicant says, to the charges in respect of which extradition was refused, it is broader than that and also relates to three new charges.         As to Article 3 para. 2 of Protocol No. 4 (P4-3-2) to the Convention, the Commission finds that this provision relates not to measures which affect an applicant's desire to enter a country, but rather to actual deprivations of individuals' right to enter the country of which they are a national.   The deprivation may be more or less formal, but the Commission finds that the present case does not disclose any such deprivation.         It follows that these complaints are also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)